Land and Brick Entertainment Ltd. v. Calcutta Municipal Corporation — 1999 DIGILAW 574 (CAL)

Judgment S.B. Sinha, A.C. J.: The vires of sub-section (4) of section 170 of the Calcutta Municipal Corporation Act, 1980 (hereinafter called and referred to for the sake of brevity as 'the said Act') as well as the question as to whether the lessor or the superior lessor is primarily responsible for payment of Commercial Sur-Charge leviable in terms of the said provision are the core questions involved in these applications. 2. The reference to a larger bench was made by a division bench of this court in one of these matters by an order dated 3rd February, 1998 in view of conflict of decisions in Mukherjee Estates Put. Ltd. vs. Calcutta Municipal Corporation being appeal from Original Order No. 499/91 disposed of on 29th April, 1993 and another division bench judgment dated 1st February, 1995 in Suit No. 312 of1986 (State Bank of India vs. Satish Chandra Agarwala) 3. In Mukherjee Estates (supra) it was held:- "On reading the provisions of sections 193, 230 and 231 of the Calcutta Municipal Corporation Act, it is clear that the primary liability to pay the consolidated rate including surcharge is upon the owner of the premises and that such owner of the premises had been given right to recover from any of the occupier of such land and building. In other words legislature clearly intended that the owner shall realise the amount from the tenant and in its turn pay the same to the Municipal Authority. This was done for the convenience of recovery. It is true that the liability to pay the surcharge is not directly upon the owner and/or the landlord. Such a liability would arise when the building is let out wholly or partly for commercial or non-residential purposes. Assessment is made on the building and the consolidated rate is a first charge upon the building." 4. Whereas in Satish Chandra Agarwala (supra) it was held that the landlord is primarily liable to pay such consolidated rate which includes surcharge. 5. Before we proceed to advert to the matter further it is relevant to note that a Division Bench of this Court in All Haj Amir Hassan Properties Put. Whereas in Satish Chandra Agarwala (supra) it was held that the landlord is primarily liable to pay such consolidated rate which includes surcharge. 5. Before we proceed to advert to the matter further it is relevant to note that a Division Bench of this Court in All Haj Amir Hassan Properties Put. Ltd. vs. The Corporation of Calcutta reported in 1979 (1) CHN 361 upon taking into consideration the provisions of Calcutta Municipal Corporation Act, 1951 held:- "For all the reasons aforesaid, we are of opinion that the Corporation cannot include 'surcharge' in the occupier's share of the consolidated rate bill. The Corporation cannot, as a matter of right, recover 'surcharge' as a part of the consolidated rate payable either by the owner or by the occupier. For the recovery of 'surcharge' the Corporation has to adopt other methods in accordance with law of which some indications have been given by us in this judgment." 6. In that decision it was further held that surcharge-cum-commercial surcharge being linked with user, the same was beyond the legislative competence of the State as envisaged in Entry 49 List II of the 7th Schedule of the Constitution of India. 7. However, admittedly a special leave application was filed against the said judgment and ultimately the said decision has been reversed by the Supreme Court of India. 8. Commercial surcharge under the 1951 Act was payable in terms of section 191A thereof which reads thus:- "Section 191A. Payment of surcharge.- Notwithstanding anything contained in section 191 or in any other provisions of this Act. 8. Commercial surcharge under the 1951 Act was payable in terms of section 191A thereof which reads thus:- "Section 191A. Payment of surcharge.- Notwithstanding anything contained in section 191 or in any other provisions of this Act. (a) When a surcharge has been imposed upon any land or building under the second proviso to sub-section (1) of section 165, the surcharge shall be payable by the owner or occupier, as the case may be, who uses such land or building for commercial or non-residential purpose; (b) When any portion of the land or building is used for commercial or non-residential purpose, that amount of consolidated rate payable in respect of such portion shall while fixing the consolidated rate for the entire land or building be separately calculated and the surcharge shall be imposed under the second proviso to sub-section (1) of section 165 on that amount of the consolidated rate and shall be payable by the owner or occupier, as the case may be, who uses such portion of these land or building for commercial or non-residential purpose." 9. The Division Bench in All Haj Amir Hassan (supra) had held that legislature had not used the word 'user tax' but had used the word 'surcharge' and as surcharge was imposeable only when consolidated rate was imposable and this imposition of surcharge was dependant on the amount of consolidated rate. It was found that there was a difference between surcharge and consolidated rate in view of section 165(1). It was also noticed that whereas consolidated rate is fixed by the Corporation, surcharge is fixed by the State Government. 10. After the aforementioned decision was rendered while enacting the 1980 Act. the definition of 'Consolidated rate' as contained in section 2(20) in the said Act was changed and commercial surcharge was included therein. 11. Mr. Biswaraup Gupta, the learned Senior Counsel appearing on behalf of the appellant, inter alia, submitted that unless the construction made by the Division Bench of this Court in Mukherjee Estate is upheld, the entire machinery provisions would become unworkable. Mr. Gupta, would urge that keeping in view the provisions of the said Act and in particular section 193 thereof as the said provisions is not referable to surcharge or the whole of the consolidated rate, the owner cannot be made primarily liable. Mr. Gupta, would urge that keeping in view the provisions of the said Act and in particular section 193 thereof as the said provisions is not referable to surcharge or the whole of the consolidated rate, the owner cannot be made primarily liable. According to the learned Counsel, as the interpretation clause begins with the words "unless the context otherwise requires", it should be held that surcharge is not payable by the landlord unless he realises the same from the tenants. It was the submission of Mr. Gupta that the intention of the legislature which would appear from reading the Act as a whole would be apparent to the effect that the landlords are primarily liable only for a part of the conservative consolidated rate (minus excess in terms of section 194 + surcharge) and in respect of the other levies it is the occupiers who are primarily liable therefor. It was submitted that the obligation of the owner to pay such other levies to Calcutta Municipal Corporation will only arise if and when the occuiper pays the same to the owner. 12. For the aforementioned purpose, urged Mr. Gupta, the Act if required may have to be read down as was done in Govind Saran Ganga Saran vs. Commissioner of Sales Tax & Ors., reported in 155 ITR 144. The learned Counsel contends that section 196 of the Calcutta Municipal Corporation Act refers to the 'person liable' and not 'person primarily liable'. Thus, section 196 refers to a wider category of tax as compared to section 193 thereof. Comparison of the offending provision in this connection has also been made with sections 195, 230 and 231 on the one hand and sections 189(5), 216, 217 and 219 on the other pointing out that whereas in the former the words 'primary liable' have been used in the latter 'persons liable' have been used. 13. According to the learned Counsel, there are other provisions i.e. 182A, 184(3) & (4) as also 186 in the Act which would show that there are persons other than the owners who are liable to pay the taxes under the Act. It was contended that section 171 (4) should be read with section 230(b) and so read, the amount of commercial surcharge would be recoverable from the tenant. It was contended that section 171 (4) should be read with section 230(b) and so read, the amount of commercial surcharge would be recoverable from the tenant. It was submitted that as the consolidated rate is to be computed on the basis of fair rent which may be determined in terms of section 8 of the West Bengal Premises Tenancy Act and as in terms of section 9 thereof the legislature is precluded from realising the entire consolidated rate and further is precluded from realising commercial surcharge at all, the only construction which would uphold the validity of the said Act, contends Mr. Gupta, would be to make the lessor liable to pay the commercial surcharge as and when the same is paid to the landlord. 14. In these cases Sarat Damji Mansatta & Ors., filed an application for being impleaded as parties which was allowed by a division bench of this court by an order dated 2.12.1997. 15. Mr. Pradip Ghosh, the learned Senior Counsel appearing on behalf of the intervenor/tenant on the other hand submitted that the provision of sections 186 to 188 of the said Act do not provide for any hearing of the tenants before consolidate rate which would include commercial surcharge is fixed. According to the learned Counsel, the principles of natural justice was required to be complied with in view of the provisions contained in subsection (2) of section 194 and section 231 of the Act. The learned Counsel strongly relied upon a decision of this court in Dr. Roma Sur vs. State of West Bengal, reported in 95 CWN 1 wherein it has been held that nonobstante clause as referred to in section 174 of the Act cannot override the provision of section 174 of the West Bengal Premises Tenancy Act. It was, therefore, submitted that the tenants are not liable to Play the consolidated rate and taxes in respect of any annual valuation. Furthermore, contends Mr. Ghosh, the tenants have no right of appeal for all practical purposes. It has further been submitted that in respect of the apportionment of liability for consolidated rates in terms of section 194 of the Act the landlord would gain if the valuation increases as he gets a rebate of 5% in terms of section 215 of the Act on the entire valuation but such rebate is not proportionately amongst to the tenants. It was, therefore, submitted that the tenants are entitled to appropriate declarations, which are:- "(a) The tenants have a right of hearing before any revision of annual valuation. (b) The tenants can prefer an appeal from an order of hearing officer without waiting for the interim deposit of consolidated rates and taxes. (c) The market value in respect of any premises cannot exceed more than 110% of the valuation of the premises calculated on the rental basis. (d) The persons primarily liable as defined under the Act has got no locus standi to collect rates and taxes on behalf of the respondents. (e) The tenants who have corresponding right to recover the consolidated rates for their sub-tenants as provided, inter alia, under section 231 of the Act. (f) There has to be a corresponding provision for granting rebate to the persons actually paying the rates and taxes as provided, inter alia, under section 215 of the CMC Act." 16. Mr. Anindya Mitra, the learned Senior Counsel appearing on behalf of the other respondents, on the other hand, submitted that tax has three elements namely (1) taxable events, (2) assessment of tax, and (3) recovery of tax. Reliance in this connection has been placed on Govind Saran Ganga Saran vs. Commissioner of Sales Tax & Ors., reported in 155 ITR 144 and Machinnon Machenzie & Co. Ltd. vs. The Calcutta Municipal Corporation, reported in AIR 1999 Cal 205 . It was submitted that income or yield of the land or building is taken merely as a measure of the tax but thereby the nature or character of the levy is not changed and, thus, the tax is levied on the land or building. Reliance in this connection has been placed on Goodricke Group Ltd. & Ors. vs. State of W.E. & Ors., reported in 1995 Supp(1) SCC 707. It was further submitted that the liability to pay consolidated rate is primarily upon the owner as has been held by this Court in Machinnon Machenzie & Co. Ltd. vs. The Calcutta Municipal Corporation, reported in AIR 1999 Cal 205 : 1999 (1) CRN 627. Mr. Mitra would urge that three elements of taxation ends with recovery of tax. Section 230 of the said Act contends Mr. Mitra, do not provide for recovery of tax by the taxing authority from the tax payers and, thus, is not the kingpin of the tax structure. Mr. Mitra would urge that three elements of taxation ends with recovery of tax. Section 230 of the said Act contends Mr. Mitra, do not provide for recovery of tax by the taxing authority from the tax payers and, thus, is not the kingpin of the tax structure. It is a provision for liability inter se owner and occupier and not liability between the taxing authority and the person liable to pay the same therefor. The learned Counsel pointed out that consolidated rate is always shared in equal proportion by the owner and occupier as both of them enjoy benefit from the land and building inasmuch as whereas, the owner enjoys the rental income and the occupier enjoys the use of the property. The legislative intent Mr. Mitra would urge was to preserve the right of the owner to recover portion of the taxes from the occupier as he was made primarily liable therefor. The learned Counsel would contend that in terms of 1951 Act, the Calcutta Municipal Corporation could directly recover from the occupier half of the amount of tax as occupier's share of the tax and since the occupier is deriving extra yield benefit out of the property by commercially exploiting the building, the owner has been given right to recover the entire amount of commercial surcharge from the occupier. It has been submitted that whereas; in terms of section 231 of the Act the landlord has been given liberty to recover such amount as rent, provision for a speedy recovery has been made as in suit for eviction for default in payment of rent the tenant will have to make deposit in terms of section 17(1) & (2) of the West Bengal Premises Tenancy Act. It has been submitted that the rent having not been defined under the Tenancy Act, commercial surcharge should be held to be included in rent. Reliance in this connection has been placed on Puspa Sen Gupta vs. Susma Ghose, reported in 1990 (2) SCC 651 . It has been submitted that the harsh rate of taxation is not a ground for striking down the tax. Reliance in this connection has been placed on John Jeffery Madan vs. The Commissioner, Calcutta Municipal Corporation & Ors., reported in 1998(1) CWN 568. It has been submitted that the harsh rate of taxation is not a ground for striking down the tax. Reliance in this connection has been placed on John Jeffery Madan vs. The Commissioner, Calcutta Municipal Corporation & Ors., reported in 1998(1) CWN 568. It has further been submitted that in any event, the question as to whether the landlord can recover the same from the tenants or not, is not the determining factor for imposition of tax and in support of this contention reliance has been placed on M/s.- Hoechst Pharmaceuticals Ltd. vs. State of Bihar, reported in AIR 1983 SC 1019 and M. Bhaskara Rao vs. State of Andhra Pradesh & Ors., reported in AIR 1963 AP 357 (P. 359). 17. In view of the aforementioned rival contentions only two questions arise for consideration in these matters: 1. Whether the provisions levying commercial surcharge is ultra vires the Constitution? 2. Whether the lessor or the superior lessor is primarily liable for payment of the said amount? 18. Re. - Contention No.1 Entry 49 of List I of VIIth Schedule of Constitution of India reads thus:- "Taxes on lands and buildings." In view of the definition of consolidated rate as contained in section 2(20) of the Act, there cannot be any doubt whatsoever that commercial surcharge being a part of the consolidated rate, the same would come within the purview of Entry 49. The Entries of the VIIth Schedule of the Constitution of India, it is trite, do not refer to any power to make legislation but only refers to the field of legislation. Such Entries must receive wide interpretation. Both in Mukherjee Estates (supra) as also Roma Sur (supra) the vires of the said provisions have been upheld. We do not find any reason particularly in view of the change in the definition of consolidated rate to arrive at a finding as to why the same would not be held to be a tax imposed on the building or the land. . 19. The said Act had been enacted to amend and consolidate the law relating to the rules of Municipal affairs of Calcutta. 20. . 19. The said Act had been enacted to amend and consolidate the law relating to the rules of Municipal affairs of Calcutta. 20. Article 243X of the Constitution of India also authorises a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits and the same comes within the purview of the legislative field of the State in terms of the said provision. The first question must, therefore, be answered in negative. 21. Re. Contention No.2 Chapter XII occurring in Part-IV of the said Act empowers the Corporation to levy taxation and consolidated rate. Section 168 provides as to how the amount of consolidated rate would be fixed. Section 170 empowers the Corporation, inter alia, to levy a consolidated rate on lands and buildings. The power to levy consolidated rate in terms of section 170 must be construed in the light of the definition of the words "consolidated rate" occurring in section 2(20) of the Act. Section 171 provides that for the purpose of the said Act a consolidated rate on the annual value determined under the Chapter of lands and buildings in Calcutta would be imposed by the Corporation. Sub-section (2) provides for the manner in which the consolidated rate would be computed. 22. Sub-section (4) of section 171 reads thus:- "Notwithstanding the provisions of sub-section (2) [and sub-section (9)], the Corporation may, where any land and building (or hut) or portion thereof is used for commercial or non-residential purpose, levy a surcharge on the consolidated rate on such land or building (or hut) or portion thereof at such rate not exceeding fifty percent of the consolidated rate as the Corporation may from time to time determine." 23. Determination of annual valuation is provided for in section 174 of the Act. Sub-section (1) of section 174 reads thus:- "174(1).- Notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 (West Ben. Act XII of 1956) or in any other law for the time being in. Determination of annual valuation is provided for in section 174 of the Act. Sub-section (1) of section 174 reads thus:- "174(1).- Notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 (West Ben. Act XII of 1956) or in any other law for the time being in. force, for the purpose of assessment to the consolidated rate, the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might at the time of assessment be reasonably expected to let from year to year, less an allowance of ten per cent, for the cost of repairs and other expenses necessary to maintain such land or building in a state to command such gross rent." 24. Section 193 refers to incidence of consolidated rate on lands and buildings providing that the same shall be primarily leviable upon the persons mentioned therein viz. (1) if the land or the building is let upon the lessor; and (2) if the land or building is sub-let upon the superior lessor. 25. Section 194 provides for apportionment of liability for consolidated rate on land or building when the premises assessed are let or sublet. 26. Sub-section (1) of section 196 states that save as otherwise provided in this Act, the consolidated rate on any land or building under this chapter shall be paid by the persons liable for the payment thereof in quarterly instalments. Sub-section (2) of section 196 provides for presentation of a bill upon person liable for payment of consolidated rate. 27. Section 214 occurs in Chapter XVI dealing with payment and recovery of taxes. It merely provides that any tax levied under the Act may be recovered, inter alia, in the manner prescribed thereunder, viz. "(a) by presenting a bill, or; (b) by serving a notice of demand, or; (c) by distraint and sale of defaulter's movable property, or; (d) by the attachment and sale of a defaulter's immovable property, or; (e) in the case of consolidated rate on lands and buildings, by the attachment of rent due in respect of the land or the building, or; (f) by a certificate under the Bengal Public Demands Recovery Act, 1913 (Ben. Act III of 1913)." 28. Section 216 provides for presentation of the bill. Act III of 1913)." 28. Section 216 provides for presentation of the bill. Section 217 provides for service of notice of demand, notice fee, interest and penalty. 29. Sections 230 and 231 read thus:- "Section 230. Appointment of consolidated rate by the person primarily liable to pay. - Save as otherwise provided in this Act, the person primarily liable to pay' the consolidated rate in respect of any land or building may recover, (a) if there be but one occupier of the land or building, from such occupier half of the rate so paid, and may, if there be more than one occupier, recover from each occupier half of such sum as bears to the entire amount of rate so paid by the owner the same proportion as the value of the portion of the land or building in the occupation of such occuper bears to the entire value of such land or building: (b) the entire amount of the surcharge on the consolidated rate on any land or building from the occupier of such land or building who uses it for commercial or non-residential purposes. Section 231. Mode of recovery. - If any person primarily liable to pay any consolidated rate on any land or building and is entitled to recover any sum from an occupier of such land or building, he shall have, for recovery thereof, the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to recover such sum." 30. A bare perusal of the aforementioned provisions would clearly show that the said Act is a complete code in itself. It not only empowers the Calcutta Municipal Corporation to levy consolidated rate but also provides for the manner of assessment as also the recovery thereof. 31. In Govind Saran Ganga Saran vs. Commissioner of Sales Tax & Ors., reported in 155 ITR 144, it is stated:- "The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax• is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity." 32. This aspect of the matter has also been considered by a Division Bench of this court in Mackinnon Mackenzie & Co. Ltd. vs. The Calcutta Municipal Corporation & Ors., reported in AIR 1999 Cal 205 wherein it has been held; "The Calcutta Municipal Corporation Act, 1980 was enacted to amend and consolidate the law relating to the municipal affairs of Calcutta. It is not disputed that the matter relating to payment of consolidate rate in respect of land and building is governed by the provision of the Act. It is also beyond any cavil of doubt that the Corporation being a creature of statute can realise taxes only within the four corners of the provisions of the said Act. 'Taxation' has three elements viz. (1) taxable event, (2) assessment of tax, and (3) recovery of tax, Municipal Tax by way of consolidated rate or otherwise can be levied in respect of land or the buildings constructed thereupon-. Primarily the owner of such land arrd building would be liable to pay tax from the date of acquisition of the land or completion of the construction of the building." 33. Upon taking into consideration the various provisions of this Act, this Court observed, "It is now a well settled principles of law that there cannot be any intendment for tax. Imposition of tax or assessment or steps for recovery thereof being governed by the provision of law, the Calcutta Municipal Corporation could not have gone beyond the statute. The provision contained in section 193 in no uncertain terms states that only the 'owner' (respondent No.9) would be primarily liable. In the event of failure of the owner to pay consolidated rate and other taxes, recovery can be made from the occupiers of the building but such a provision must be carried into effect strictly in accordance with law. The provision of the said Act nowhere states that the liability to pay consolidated rate is also on a lessee or sub-lessee. The provision of the said Act nowhere states that the liability to pay consolidated rate is also on a lessee or sub-lessee. It merely empowers the Corporation to collect that arrears of such consolidated rates and taxes from the occupiers of the building only in the manner laid down under section 225 and not otherwise. Only in a case where the occupiers of the building failed to comply with the direction as contained in sub-sections (1) and (2) of section 225, a tax can be recovered from the occupiers of the building in the same manner as could be done in the case of lessor or the superior lessor. It is, therefore, preposterous to contend that sections 231 and 232 of the said Act confer an absolute, unguided, unbriddled, uncanalised or naked power upon the authorities to realise the amount of consolidated rent from any person whomsoever." 34. It was pointed out that section 231 of the Act provides for the benefit of the person who is primarily liable to pay the consolidated rate. It was held that the provision to the effect that recovery of consolidated rate can be made from the tenant and for that purpose its properties can be seized, was repealed. 35. Article 14 of the Constitution of India is also required to be liberally applied in favour of a taxing statute. It is further well known that when a statute makes a person liable, unless the same is declared ultra vires; hardship or any such similar ground would not make the Act invalid. It is also a well settled principles of law that the Court should make an attempt to construe the statute in such a fashion so as to make it constitutional. In fact, in law a presumption arises as regard the constitutionality of the statute. The provisions of the said Act are, therefore, required to be considered in the light of the aforementioned legal principles. 36. It is also well settled principles of law that with a view to uphold the constitutionality of a statute, the provisions thereof either may be read down or read up, unless the provisions are found to be ultra vires. Section 171(4) begins with a non-obstante clause. 36. It is also well settled principles of law that with a view to uphold the constitutionality of a statute, the provisions thereof either may be read down or read up, unless the provisions are found to be ultra vires. Section 171(4) begins with a non-obstante clause. It provides that whenever any land or building or hut or portion thereof is used for commercial or nonresidential purpose, the Corporation may levy a surcharge on the consolidated rate on such land or building or hut or portion thereof as such rate not exceeding 50% of the consolidated rate as the Corporation may from time to time determine. 37. Section 174 provides for annual valuation. Sub-section (1) of section 174 also contains a non-obstante clause. It provides that the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might, at the time of assessment, be reasonably expected to let from year to year, less an allowance often percent, for the cost of repairs and other expenses necessary to maintain such land or building in a state to command such gross rent. 38. It may not be correct to contend that only because the words 'persons liable' have been used in certain provisions including sections 193 and 194 of the said Act, the same would not mean that the expression 'persons liable' do not include the persons who are primarily liable therefor. The expression 'persons liable' has wider connotation. 39. It is now a well settled that validity of a statute can be questioned on limited ground. 40. In State of A. P. & Ors. vs. McDowell & Co. & Ors., reported in 1996(3) SCC 709 , the law in this regard clearly has been laid down in the vide paras 42 to 49. 41. In Raghuvanshi Pvt. Ltd. & Anr. vs. The Calcutta Municipal Corporation & Ors., reported in 1999(1) CRN 430 it has been held that even a person who has constructed building unauthorisedly would be liable to pay rates and taxes. 42. In the aforementioned decision reference has been made to Saturday Club Limited vs. Calcutta Municipal Corporation & Ors., reported in 1999(1) CRN 627, wherein it has been held: "The learned Counsel submits that in view of the aforementioned definition, a lessee may also become lessor in respect of his tenants. 42. In the aforementioned decision reference has been made to Saturday Club Limited vs. Calcutta Municipal Corporation & Ors., reported in 1999(1) CRN 627, wherein it has been held: "The learned Counsel submits that in view of the aforementioned definition, a lessee may also become lessor in respect of his tenants. This may be so, but it has to be borne in mind that the Act has used three different expressions, namely, 'owner', 'lessor' and 'superior lessor'. In case of a lease, clause (a) of sub-section (1) of section 193 makes the lessor as a person primarily liable and in case of a sublease, the superior lessor is made primarily liable in relation to the subject matter of the sub-lease by reason of clause (b) thereof. In that view of the matter, although the appellant may be realising rent from its tenants, as there had been a consolidated assessment in respect of the entire land and buildings, in the facts of this case only the Mullicks would be the lessor or superior lessor in respect of the premises in question and, thus, are, statutorily liable to pay the rates and taxes under the Act." 43. So far as a taxing statute is concerned, the validity thereof has to be tested with reference to the legislative competence and/or on the touch stone of the provisions contained in Part-III of the Constitution of India or any other provisions thereof. It has not been submitted nor could it be submitted that despite the provisions contained in Article 243X of the Constitution of India the State was not empowered to levy commercial surcharge and include the same within the definition of 'consolidated rate. An owner while lets out his building, knows the purpose for which the same would be used. In fact, provisions of Rule 9(3)(e) of the Rules provides for an enquiry as regard the nature of the of the user. A presumption may be raised that the rate of rent would be higher if a tenament is let out for commercial purpose. 44. The only question which now arises for consideration is as to whether the provisions are severable. 45. In a case if it is found that the provisions are not in severable and, thus, if one provision it declared ultra vires, the entire statute has to be declared as such. Such is not the position here. 46. 44. The only question which now arises for consideration is as to whether the provisions are severable. 45. In a case if it is found that the provisions are not in severable and, thus, if one provision it declared ultra vires, the entire statute has to be declared as such. Such is not the position here. 46. The right of the Calcutta Municipal Corporation to levy and recovery tax from the lessor or the superior lessor, as the case may be, on the ground that they are primarily liable therefor cannot be linked up with the right of the landlord to recover a portion of the consolidated rate and the entire commercial surcharge from the tenant. 47. A taxing statute does not become ultra vires only because tax levied is not recoverable. 48. In M/s. Hoechst Pharmaceuticals Ltd. vs. State of Bihar reported in AIR 1983 SC 1019 , the Apex Court, inter alia, held that the provisions of sub-section (1) of section 5 of the Bihar Finance Act, 1981 providing for the levy of a surcharge on every dealer whose gross turn over during a year exceeds 5 lacs in addition to the tax paid by him at such rate not exceeding 10% of the total amount of the tax and sub-section (3) of section 5 of the Act which prohibits such dealer from collecting the amount of surcharge payable by him from the purchasers. 49. Thus, validity of an impost does not necessarily depend upon the right of the tax payer to recover the same from others. 50. In Electronics Corporation of" India Ltd. vs. The Secretary, Revenue Department, Gout. of" A.P. Hyderabad & Ors., reported in AIR 1983 A.P. 239 , the right to impose tax on the lessee despite the fact that the lessor was the Govt. of India has been held to be valid. 51. In any event, the petitioners have not questioned the validity of sections 230 and 231 of the said Act. 52. The only question which now remains to be considered is as regard the contention of the petitioner as to whether the tax is primarily payable by the tenants and not by the landlords. The said contention, if upheld, would be in clear derogation to the provisions of section 193 of the said Act. Such a construction, thus, cannot be resorted to on the face of the said provision. 53. The said contention, if upheld, would be in clear derogation to the provisions of section 193 of the said Act. Such a construction, thus, cannot be resorted to on the face of the said provision. 53. The question as to whether who would be primarily liable to pay the tax and as to whether such amount of tax can be recoverable from any other person would depend upon the nature of the levy and the purport and object of the Act. 54. In Krishi Utpadan Mandi Samiti, Haldwani & Ors. vs. Indian Wood Products Ltd. & Anr., reported in 1996(3) SCC 321 , upon which strong reliance has been placed by the learned Counsel for the petitioners, referring to an earlier decision in Krishi Upaj Mandi Samiti vs. Orient Paper & Industries Ltd., reported in 1995(1) SCC 655 , the Apex Court construing the provisions of section 17 of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 held that the liability to pay the market fee is placed primarily upon the purchaser. Sub-clause (iii) of section 17 provided that traders selling the produce may realise the fee from the purchaser and shall be liabel to pay the market fee to the Committee. Repealing the contention that the levy in such a case is upon the selling trader and that it is for him to pay the market fee, it was held: "We are unable to agree with the submission. A reading of the several sub-clauses shows, as mentioned hereinbefore, that the liability to pay the market fee is always upon the purchaser. It is no different in sub-clause (3). If the ultimate liability was not upon the purchaser, there was no meaning in the legislature saying that the selling producer may realise the fee from the purchaser and make it over to the Committee. The use of the word 'shall' in the said clause means that where the selling trader realises the fee from the purchasing trader, he is bound to make it over to the Committee. But where the selling trader does not realise it from the purchaser, he is under no obligation to pay the market fee to the Committee. In such a case, the liability to pay the market fee is upon the purchasing trader. This interpretation, in our opinion, accords with the scheme of clause (b) of section 7(iii) of the Act." 55. But where the selling trader does not realise it from the purchaser, he is under no obligation to pay the market fee to the Committee. In such a case, the liability to pay the market fee is upon the purchasing trader. This interpretation, in our opinion, accords with the scheme of clause (b) of section 7(iii) of the Act." 55. The said decision also therefore, has no application in the facts of the present case. Each case, as well known must be considered in the context of the fact involved therein. 56. Strong reliance placed by Mr. Gupta in M/s. Ram Krishna vs. Janpad Sabha reported in AIR 1962 SC 1073 , appears to be misplaced. In that case the Apex Court was considering a question as to right of a District Council to impose tax on the export of bid is and bidi leaves by rail out of its territorial jurisdiction, the same was held to be a terminal tax on goods carried by railway covered by Entry 58 in the Federal Legislative List - List I in the Seventh Schedule to the Government of India Act, 1935. The said decision has, therefore, no application. 57. The mode of recovery of tax and/or the power to realise the same from another person has nothing to do with the validity of the tax. 58. The contention of Mr. Gupta to the effect that the provisions of Calcutta Municipal Corporation Act and the West Bengal Premises Tenancy Act, would come in conflict with each other. We may point out that the word 'rent' has not been defined. 'Rent' may include an agreed rent or a fair rent, or other charged including service charges and rates and taxes as provided for under the statute. 59. It is true that the West Bengal Premises Tenancy Act contains a non-obstante clause in section 4 therein but the said Act also must be given its full effect. An attempt, thus, should always be made to harmonise both the statute. The Calcutta Municipal Corporation Act, as indicated hereinbefore, had not only been enacted in terms of the provision of List II of the VIIth Schedule of the Constitution of India but also in terms of Article 243X thereof. An attempt, thus, should always be made to harmonise both the statute. The Calcutta Municipal Corporation Act, as indicated hereinbefore, had not only been enacted in terms of the provision of List II of the VIIth Schedule of the Constitution of India but also in terms of Article 243X thereof. The legislature while enacting a latter statute, is presumed to be aware of the provisions of the earlier statute and thus, when in the said Act a provision has been made to the effect that the entire amount of commercial surcharge can be realised from the tenant as rent, such a provision being a special provision, both the Acts should be react harmoniously. Not only sub-section (4) of section 171 starts with a nonobstante clause but sub-section (1) of section 174 thereof also does. The said Act is a special statute. 60. In R.S. Raghunath vs. State of Karnataka & Ors., reported in AIR 1992 SC 81 , it was held; "Further, the influence of a non-obstante clause has to be considered on the basis of the context also in which it is used. In State of West Bengal vs. Union of India, (1964) 1 SCR 371 : AIR 1963 SC 1241 at p.1265, it is observed as under; 'The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed 'but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.' It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense." 61. In Satish Chandra Agarwal & Ors. vs. State Bank of India, reported in 1988(1) CAL. L.J. 536 also it was held that in absence of contract tenant using the premises for commercial or non-residential purpose, the liability to pay surcharge remains on the tenant. As noticed hereinbefore, the said decision has also been reversed. The changed portion in law must also be taken into consideration keeping in view the Heydon's Rule. 62. In section 231 the word 'as if has been used. Thus a legal fiction has been created. In East End Dwellings Co. Ltd. vs. Finsbury Borough Council, reported in 1951 (2) All. As noticed hereinbefore, the said decision has also been reversed. The changed portion in law must also be taken into consideration keeping in view the Heydon's Rule. 62. In section 231 the word 'as if has been used. Thus a legal fiction has been created. In East End Dwellings Co. Ltd. vs. Finsbury Borough Council, reported in 1951 (2) All. E.R. 587, the law is stated in the following terms; "If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." See also Kuldeep Singh vs. Ganpat Lal and Anr., reported in (1996) 1 SCC 243 . 63. On the interpretation of legal fiction, this court has to primarily consider two aspects, firstly, the purpose of introducing a legal fiction and secondly, the logical consequences of such a legal fiction. Thus, there cannot be any doubt that the intention of the legislature has been to allow the landlord to recover the amount of commercial surcharge as a rent. Such a legal fiction created must be given its full effect. 64. In any view of the matter when non-obstante clauses find place in both the Acts, the conflict is to be resolved on consideration of purpose and policy underlying the enactments and language used in them. As 'Rule' has not been defined in the West Bengal Premises Tenancy Act, there is absolutely no reason as to why no provision could be made that the amount of tax is to be realised from the tenant by a statute which was within the legislative competence of State which had also enacted West Bengal Premises Tenancy Act. In any event, the latter enactment normally prevails over the earlier one. Reference in this connection may be made to G. Sridharmurti vs. Hindustan Petroleum Corporation, reported in 1995(5) Scale 612 : 1995(6) SCC 605 . 65. So far as the submission of Mr. Ghosh is concerned that principles of natural justice is not complied with in the cases of the tenants, the same cannot be accepted. Reference in this connection may be made to G. Sridharmurti vs. Hindustan Petroleum Corporation, reported in 1995(5) Scale 612 : 1995(6) SCC 605 . 65. So far as the submission of Mr. Ghosh is concerned that principles of natural justice is not complied with in the cases of the tenants, the same cannot be accepted. In terms of sub-section (3) of section 184 a Municipal Commissioner is required to give public notice of the place, time and date not less than one month after the preparation of the assessment list as to when he would proceed to consider annual valuation of the lands and buildings entered in the assessment list and in all cases in which any land or building is for the first time assessed, or the annual value of any land or building is increased, he shall also give written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building and shall also specify in the notice the place, time and date, not less than one month thereafter, when he will proceed to consider such valuation. 66. As indicted hereinbefore, even at the time of haering for fixation of quantum of consolidated rate the purpose for which the tenament is sought to be used is also a factor which is taken into consideration. The lessee who has a notice, may take part in the hearing keeping in view the provisions of the Act to the effect that he has also an ultimate liability to pay a part of the consolidated rate and the commercial surcharge, may prefer an appeal in terms of sub-section (6) of section 189 of the Act. The provision of subsection (6) of section 189 has been held to be intra vires in various decisions of this Court as also the Supreme Court of India. In any event, if a jurisdictional error is committed or any illegality is committed in the decision making process, it will always be open to a tenant to approach this court for . judicial review. It is not correct to contend that by reason of sections 230 and 231 of the said Act, the Corporation would be appointing agents to collect taxes on its behalf. The said provision is merely an enabling one. Similar . provision, as noticed hereinbefore, also exists any other Acts. judicial review. It is not correct to contend that by reason of sections 230 and 231 of the said Act, the Corporation would be appointing agents to collect taxes on its behalf. The said provision is merely an enabling one. Similar . provision, as noticed hereinbefore, also exists any other Acts. See Krishi Utpadan Mandi Samiti vs. Indian Wood Products Ltd., reported in 1996(3) SCC 321 . 67. By reason of sections 8 and 9 of the West Bengal Premises Tenancy Act, no tax is imposed. It will not, therefore, be correct to contend that the landlord cannot realise the amount of commercial surcharge as rent. How and in what manner such an amount can be realised is not a matter of concern for the legislature but despite the same it has not only, unlike the provision of other Acts, clearly stated that such an amount can be realised as rent i.e. either alongwith rent or by taking other modes of recovery to which he is entitled to recover the amount of rent. We may also have to bear in mind that right of the landlord to realise a part of the consolidated rate from his tenant has been in vogue for a long time. 68. In Goodricke Group Ltd. & Ors. vs. State of West Bengal & Ors., reported in 1995 Supp. (1) SCC 707, buildings have been classified into several categories as for example residential buildings, business buildings etc. Such classification has been made in section 390 (2) of the Act, thus, such classification cannot be said to be invalid. 69. In Mookherjee Estate (P) Ltd. vs. The Calcutta Municipal Corporation & Ors., (supra) the Division Bench upon taking into consideration the provisions of the Act, did not notice the definition of 'consolidated rate' nor noticed the contentions raised' herein. The learned Judge, however, made an observation:- "In other words legislature clearly intended that the owner shall realise the amount from the tenant and in its turn pay the same to the Municipal Authority. This was done for the convenience of recover. It is true that the liability to pay the surcharge is not directly upon the owner and/or the landlord." But later on the Bench itself held:- "In the absence of any provision of the said Act the Municipal Authorities have no such power to recover directly from the tenants and/or occupier. This was done for the convenience of recover. It is true that the liability to pay the surcharge is not directly upon the owner and/or the landlord." But later on the Bench itself held:- "In the absence of any provision of the said Act the Municipal Authorities have no such power to recover directly from the tenants and/or occupier. It is well settled principles that a statutory body cannot discharge any power and function which is not expressly conferred in the statute and if a statutory body takes any action in violation of the provisions of the statute such action shall be regarded as an ultra vires action. Accordingly, we are unable to uphold the contention of the appellant that it is the responsibility of the Municipal Authority to realise the surcharge directly from the tenants under the provisions of the said Act." 70. For the reasons aforementioned, we are of the opinion that there is no merit in these applications which are accordingly dismissed but without any order as to costs. M.H.S. Ansari, J.: I agree. Barin Ghosh, J.: I agree. Applications are dismissed.